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Officers add malicious prosecution, civil conspiracy claims to Mosby lawsuits

‘She walked on the edge, but I am going to give her the benefit of the doubt,’ one criminal defense lawyer says of Baltimore City State’s Attorney Marilyn J. Mosby, seen at a press conference earlier this month, pursuing charges against six police officers in connection with the death of Freddie Gray. But another lawyer says Officer Edward Nero’s acquittal shows Mosby ‘is a prosecutor who is bent on promoting herself rather than the city.’ (Maximilian Franz/The Daily Record)

Baltimore City State’s Attorney Marilyn J. Mosby (Maximilian Franz/The Daily Record)

Civil lawsuits by two of the officers charged in connection with the death of Freddie Gray were amended last week to include allegations of malicious prosecution, abuse of process and civil conspiracy, claiming Baltimore City State’s Attorney Marilyn J. Mosby and a member of the sheriff’s office pursued criminal charges against them without probable cause.

Sgt. Alicia White and Officer William Porter sued for defamation and invasion of privacy in Baltimore City Circuit Court in May and then added allegations of false arrest, false imprisonment and violations of the state and federal constitutions. The case was removed to federal court where it joined two other lawsuits, one brought by Officers Edward Nero and Garrett Miller and one by Lt. Brian Rice.

The three cases were consolidated last month. No amended complaints have been filed in the other cases but responses to the defendants’ motions to dismiss are due Monday.

Michael Glass, who represents White and Porter, said he expects the other plaintiffs will amend their complaints similarly in the near future.

“As things have unfolded, we’ve done more and more research and looked at a lot of the facts that we’ve uncovered,” said Glass, a Baltimore solo practitioner. “I think it’s appropriate at this point to, essentially, make all the allegations that we can.”

The suits allege Mosby “rushed to judgment” and sought the charges against the officers to calm citizens rather than because probable cause existed. The additional counts in Wednesday’s complaint allege a willful misuse of the justice system by Mosby and Maj. Samuel Cogen.

“By instituting the aforesaid proceedings [Mosby and Cogen]… willfully misused the criminal process for an improper purpose, namely, to create a public spectacle for political purposes,” the complaint alleges.

The complaint also claims civil conspiracy because Mosby and Cogen agreed to jointly file the statement of charges against the defendants “despite knowing the falsity of the claims and the lack of probable cause.”

Immunity claim

The defendants responded Thursday, again claiming that Mosby is immune from the allegations because they are “predicated on conduct — the institution and litigation of a criminal proceeding — that is at the heart of a prosecutor’s advocacy function.”

Mosby has previously asserted she has immunity because she was acting in her role as prosecutor, but the plaintiffs argue she stepped outside her role when she claimed her office conducted an independent investigation prior to bringing charges.

“Prosecutors, generally speaking, enjoy absolute immunity when they’re acting in the capacity as a prosecutor,” Glass said, “but there’s case law that’s very specific and on point that basically says if a prosecutor is acting in an investigative capacity, they don’t have absolute immunity, they have qualified immunity.”

Glass said the plaintiffs are also alleging Mosby’s office tainted the grand jury process, citing testimony by Det. Dawnyell Taylor, the lead investigator in the criminal cases.

“We have spoken to Det. Taylor, who very strongly believes that not all of the facts were disclosed to the grand jury and things were presented in a very suggestive and biased way,” he said.

With regard to the federal cause of action, Mosby has qualified immunity, according to a motion to dismiss, which shields her from liability if her “conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

Because other neutral entities within the judicial system confirmed the existence of probable cause, the plaintiffs cannot argue that merely filing charges was unreasonable and in violation of their rights, according to the motion, filed in August.

A hearing on motions is slated for the second week in October but no date has been set as of Friday afternoon.

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